Brief facts of the case as gathered from the memorandum of appeal are! that, the appellant was promoted as Executive Engineer (BS-18) on officiating basis w,e,f, 22.07.1996 on recommendation of the appropriate D.P.C. However, in the Year-2008 i,e, after 12 years Respondent No, 2 held another DPC and reverted the appellant as S.D.O (BS-17), through order dated 25.08.2008, on the recommendation of said DPC. Against the, aforesaid reversion, the appellant filed Service Appeal No, 2230/2008 before this Tribunal, wherein the appellant not only challenged his reversion but also claimed regular promotion as Executive Engineer from the very inception i,e, 22.07.1996. The Service Appeal of appellant was accepted by this Tribunal vide judgment dated 26.1.2009 and as per excerpts from the said judgment, under noted reliefs were granted to the appellant: "22 ..........For all practical purposes and legal consequences the promotion of the appellants as Executive Engineer had permanent character. Therefore, a legal effect can be given to it, without having recourse to the second DPC".
"23....... the impugned order dated 25.08.2008 passed by the Respondent No, 2 reverting the appellants to their original rank is set aside to their extent".
"......Resultantly, all the appellants shall be deemed to have been promoted on regular basis as Executive Engineer w,e,f, 22.07.1996, respectively with all consequential benefits.
44The condition of "on officiating basis" contained in the promotion orders of all the appellants shall stand deleted".
"........The aforesaid notifications in this contest shall be amended accordingly".
It is also noteworthy to mention here that while admitting the Service Appeal of the appellant, this Tribunal had suspended the operation of the impugned order dated 25.08.2008 regarding appellant's reversion with the result that the appellant wag never practically remain reverted from the post of Executive Engineer even for a single moment.
2. Feeling aggrieved of the above-referred judgment of this Tribunal, the respondent department filed Civil Appeals No, 420-L, 421-L & 423-L to 425-L of 2009 before the Hon'ble Supreme Court of Pakistan, which remained pending for about 07 years and were ultimately dismissed, vide judgment dated 11.08.2016 reported as 2016 SCM R 2125, and hence judgment of this Tribunal stood upheld. The Hon'ble Supreme Court of Pakistan granted following specific reliefs to the appellant in the aforesaid judgment: a) SUBSTANTIVE RANK AS EXECUTIVE ENGINEER FROM 22.07.1996.
10........................following facts are admitted by both sides:-- ii. All the respondents were promoted against permanent posts which were available at the relevant time.
16. The record reflects three facts. (i) The respondents were eligible for regular promotion; (ii) they were promoted against regular posts............. we have already held that the respondents were eligible, met the criteria provided in the relevant Rules, and were promoted against regular posts on the basis of recommendations of a duly convened DPC. As such, for all intents and purposes, they were promoted on regular basis and did not require recommendations of the subsequent DPCs for the "regularization" of their promotion.. b) PROMOTIONS TO HIGHER RANKS AS SUPERINTENDING ENGINEER (BS-19) AND CHIEF ENGINEER (BS-20)
"17.............. subsequent events and allegations of pending inquiries or incomplete service record had become irrelevant. These matters may possibly be taken into consideration while processing their cases for further promotions".
"18. There is no denial of the fact that an Assistant Engineer, in the ordinary course of events and provided he or she fulfills the requirements of law, is promoted as an Executive Engineer, then as Superintending Engineer, and thereafter as a Chief Engineer".
3. Although, no review was filed by the respondent/department against the above-referred judgment of Hon'ble Supreme Court of Pakistan, but at the same time, judgment of this Tribunal as well as judgment passed by the Hon'ble Supreme Court of Pakistan was also not implemented and the respondents have neither formally amended basic impugned order dated 22.07.1996, nor any consequential relief/benefits of seniority, promotion and proforma promotion were granted to the appellant. Thereafter, the appellant made a representation dated 7.10.2016, before Respondent No, 1, claiming therein the implementation of judgment dated 26.01.2009 of Punjab Service Tribunal, which was also upheld by the August Apex Court of Pakistan. The representation of the appellant was not decided within the statutory period and subsequently, he has approached this Tribunal by way of filing the instant appeal on 02.02.2017.
4. Arguments heard and record perused.
5. Due consideration having been given to the arguments put forth by both the sides, I am inclined to agree with the submissions made by learned counsel for the appellant as under:
(i) This Tribunal and Hon'ble Supreme Court of Pakistan have, in aforesaid judgments, deleted the condition of "on officiating basis" from the order dated 22.07.1996 and declared the appellant as regular Executive Engineer w,e,f, 22.07.1996 with all consequential benefits i,e, seniority and promotion to higher ranks. Therefore, no option was left with the respondents to deny those reliefs. I am however constrained to point out the apathy of the respondents that they did not bother even to issue revised/corrected order dated 22.07.1996 for a period from 11.08.2016 to 17.07.2017, i,e, for about 11 months. No further process especially when no process of holding of DPC was to be performed in issuing this order.
(ii) Likewise, the respondent/department did not undo the adverse effects of basic wrong order dated 22.07.1996 on the appellant's seniority as Executive Engineer and promotions as Superintending Engineer and Chief Engineer qua his junior (Respondent No, 3). Respondent No, 2 did not issue correct seniority list of Executive Engineers showing the appellant, at proper place in accordance with said revised date of his regular promotion as Executive Engineer i,e, 22.07.1996.
(iii)The appellant was not awarded the necessary consequential reliefs i,e, promotion or proforma promotion to higher ranks of Superintending Engineer and Chief Engineer, which have under the rules, law and aforesaid judgments of this Tribunal & Hon'ble Supreme Court became due to him on the basis of his improved/corrected seniority due to his promotion on regular basis w,e,f, 22.07.1996 as Executive Engineer.
6. From the above noted admitted facts, I have reached the conclusion that basic point involved in the case of appellant is that the appellant suffered various losses due to following serious basic errors and mistakes of the respondent/department:--
(a) The respondent/department applied Rule 13 of Punjab Civil Servants Appointment and Conditions of Service Rules, 1974, which was inapplicable. It is applicable only to officiating promotions against temporary vacancies, whereas the appellant was promoted against regular permanent, post of Executive Engineer.
(b) Correct and relevant statutory provision as contained in Section 2(2) of Punjab Civil Servants Act, 1974 and relevant law laid down by Hon'ble Supreme Court in PLD 1970 QUETTA 115 and other judgments, which were applicable in the instant case were not applied by Respondent No, 2.
7. During pendency of the instant appeal, the respondent/department has produced an order dated 17.07.2017, wherein the appellant has been promoted as Executive Engineer on regular basis in pursuance of Hon'ble Supreme Court's judgment dated 11.08.2016. In the said order necessary correction of the basic impugned promotion dated 22.07.1996 has now been made by deleting incorrect and illegal condition "on officiating basis" and substituting the same by "regular basis" w,e,f, 22.07.1996. This Order has admittedly been issued in pursuance of Hon'ble Supreme Court's judgment. No other reason of issuance of this order has been given in the same. The above words "in pursuance of Hon'ble Supreme Court judgment." prove that Respondent No, 2 has corrected the mistake/error committed by him in order dated 22.07.1996 as pointed out by this Tribunal & Hon'ble Supreme Court. The corrections have correctly been made with retrospective effect from 22.07.1996. Thus, issuance of this order amounts a clear confession on part of Respondent No, 2 of his above-noted mistake/error in promoting the appellant as Executive Engineer w,e,f, 22.07.1996 "on officiating basis" instead of "on' regular basis". Thus, order dated 17.07.2017 is self-speaking proof and admission of mistake/error by the respondent/department.
8. From perusal of the record, it has been transpired that Respondent No, 3 (appellant's next junior) was promoted as Superintending Engineer w,e,f, 11.03.2009 and as Chief Engineer w,e,f, 04.12.2012 during the period when the appellant was wrongly being treated as Officiating Executive Engineer and the case of correction of his status/date of promotion as Executive Engineer was still pending in Punjab Service Tribunal and the Hon'ble Apex Court. Aforesaid dates of promotion of 'Respondent No, 3 have neither been denied by respondent/department in their parawise comments nor during the course of arguments.
9. Now the question arises, whether the losses suffered by the appellant should be perpetuated or the same be rectified. Learned counsel for the appellant has cited judgments of Hon'ble Supreme Court of Pakistan as 2008 SCM R 1159, 2008 SCM R 1535 & 2002 SCM R 911 & 2012 SCM R 126, wherein, in similar circumstances, the civil servants concerned had suffered in fixation of seniority in lower posts due to mistake/error of the departmental authorities concerned, were rectified by the concerned authorities by awarding them proforma promotions to higher posts.
10. The learned counsel for the appellant has correctly pointed out that such rectificatory measures have duly been provided by Government itself in Proforma Promotion Policy-2003: PROFORMA PROMOTION POLICY 2003 Following portions of this Policy are applicable in the instant case: "I) PROFORMA PROMOTION (DEFINITION)
Proforma promotion means predating of promotion of a civil servant with effect from the date of promotion of his junior for the purpose of payment of arrears and fixation of pay. It means that a civil servant who was entitled to be promoted from a particular date but for no fault of his own was, wrongfully prevented from rendering service in the higher post is entitled for proforma promotion and payment of arrears of pay/allowances and refixation of pay".
"CASES WHERE PROFORMA PROMOTION CAN/CANNO T BE GRANTED".
"The salient features of the proforma promotion policy issued vide Letter No, SORII (S&GAD)2-52/73 dated 16.10.1973 and subsequent policy letters, which will continue to be applicable, are recapitulated as under:
(a) Proforma Promotion shall generally be granted in cases where an official whose junior has been promoted on regular basis but he was deferred due to any of the following reasons:--
(i) The seniority of two officials is in dispute. The senior official is promoted on due date but subsequently the junior official establishes his claim of seniority by obtaining a favourable decision from Government or the Punjab Service Tribunal or any other court of law.
(ii) The senior will have no case for proforma promotion if the junior was promoted on officiating, acting charge, current charge basis or other stop gap arrangement".
(iii) Proforma promotion to be considered at the time of regular promotion.
Previously, under the policy regarding proforma promotion, an officer/official was first promoted with immediate effect and thereafter, on his representation, his case for grant of proforma promotion was considered separately. This practice was cumbersome and resulted in delay and unnecessary hardship to the concerned civil servant. It has now been decided that:--
(a) The case of proforma promotion shall be considered by the relevant committee/board/authority at the time of regular promotion of the concerned civil servant (if he was wrongfully prevented from promotion earlier due to any of the reasons given in Para III(a), in order to reduce the work load at all levels and also to minimize the suffering caused to the civil servant, whose promotion has already been delayed due to no fault of his own.
(b) The Administrative Department shall, therefore, process the working papers for such promotions accordingly. This will obviate the necessity of individuals for filling separate representation for proforma promotion after their regular promotion."
11. I am convinced to be agreed with the learned counsel for the appellant that this Policy contained more than adequate compensatory measures in such a situation. Though the above noted Policy was binding on respondents, but they out of sheer apathy did C" not advert to the same to the detriment of the appellant. It is a common ground that the appellant was not considered alongwith said junior, when later was considered and promoted as Superintending Engineer/Chief Engineer, thus the appellant was not superseded by the above-noted junior. Thus, on the basis of correct date of his regular promotion as Executive Engineer i,e, 22.07.1996, the appellant has a right of consideration for promotion/proforma promotion as Superintending Engineer (BS-19), and Chief Engineer (BS-20) from the dates from which junior Executive Engineers including Respondent No, 3 were so promoted.
12. On the other hand, neither in their parawise comments, nor during the course of arguments, Respondents No, 1 & 2 have opposed the appellant's case on merits. The only ground, on which, the case has been contested is that the appellant has been retired from service on 6.5.2017. The learned counsel for the appellant has rebutted this objection by citing the following judgments of honourable Supreme Court of Pakistan:
(i) 1985 SCM R 1394 "4.......................The Courts will not permit the denial of the benefit if it is found or is traceable to the wrongful act of the party itself. The effect of promotion is to recognize the fact that the official concerned was entitled to be promoted from a date in the past, that he was wrongfully deprived of it that the wrong must be redressed by giving him proforma promotion and his due seniority a date in the past. The logical consequence of it is that all the ancillary benefits which follow the antedating of the promotion and seniority must be allowed to the official concerned........"
"7. The law on the point has already been laid down by this Court in The Province of Punjab v.
Syed Muhammad Ashraf 1973 SCMR 304 and other connected cases , in which proforma promotion had been ordered and the pay was being denied. The argument advanced by the Provincial Government in those cases was also that the officials concerned were not entitled to arrears of salary in the grade against which they had never worked. This Court approved the view taken by the High Court that in case a civil servant, who for no fault of his own is wrongly prevented from rendering service to the State in the higher post to which he is admittedly entitled he should be given salary for the higher post. The decision fully governs the case in hand and the appellant was entitled to the salary in spite of Fundamental Rule 17.
"8. It has been brought to our notice that the Government of Baluchistan hak from the 17th of May, 1981 recognized this principle and given effect to it. Clause (ii) of the circular prescribes that when an official was under suspension or facing departmental enquiry on serious charges and his promotion had been deferred, eventually was exonerated of the charges and was given promotion from the date on which he would have otherwise been promoted, the Government servant may be grantee proforma promotion with financial benefit provided it could be held on the basis of his service record and performance that he would have been promoted on the due date but of the circumstances he was incorrectly treated as junior or was facing a departmental enquiry or was overlooked. The fact of proforma promotion itself implies recognition of entitlement to be promoted from a date in the past.
"9. In the circumstances and for the reasons we accept the appeal set aside the judgment of the Service Tribunal and allow he claim of the appellant to 'arrears of pay from the date of his pro forma promotion as Tehsildar. No order as to costs."
(ii) 2008 SCM R 1535 "2. The appellant, having superannuated, retired from service on 02.06.1999 whereas he was due for promotion much before his retirement but was not considered for promotion on the ground/reason that a restraint order was passed by the Tribunal in another appeal".
"5. The entitlement of the Appellant for promotion was not denied rather the process of promotion was withheld on the excuse of above referred order of Tribunal. We having considered the matter, have founds that the Appellant was wrongly prevented to get next promotion and discharge the higher responsibilities as a result of which he was not only deprived of the legitimate right of promotion but was also caused permanent loss of pensionary benefit of the higher grade. In view of the above, we direct that Departmental Authorities should proceed to consider the case of Appellant for pro forma promotion as per his entitlement in accordance with law and complete the process within three months. This appeal is accordingly allowed with no order as to costs".
(iii)2002 SCM R 911.
"4. It is contended on behalf of the petitioner that the respondent was not entitled to any relief after his retirement from Government service. It is also urged that Tribunal seriously erred by allowing appeal of the respondent without appreciating law and principles governing the terms and conditions of a civil servant. Learned counsel also argued that the dues of a civil servant after his retirement could not be settled by learned Tribunal".
"5. Learned Tribunal directed the petitioner to issue revised Notification retiring the Respondent w,e,f, 28.02.2001 on the basis of his correct dated of birth. The petitioner was also directed that the Respondents pay and pension were to be fixed on the basis of revised date of retirement and all consequential benefits arising therefrom till date of his retirement, were to be paid in full. It was also ordered that the department may place the case of the respondent before Departmental Promotion Committee and if he was otherwise eligible and there was a vacancy existing at the time of his antedated retirement, a pro forma promotion could be allowed to him to enable him to draw revised benefits including pay and pension".
The learned District Attorney could not countenance these judgments. In view of the law laid down by Hon'ble Supreme Court of Pakistan in these judgments, I have no hesitation in repelling the objection of the respondent/department.
13. For the reasons discussed above and taking strength from the law referred by the learned counsel for the appellant, I am convinced that the instant appeal merits acceptance, which is accordingly accepted and Respondent No, 2 is directed to fix the seniority of the appellant in the relevant seniority list dated 08.04.2002 of Executive Engineers and seniority list dated 28.04.2009 of Superintending Engineers at Serial No, 76-A and 29-A respectively, i,e, just above Mr. M. Ayaz Mahmood - Respondent No,
3. It is further directed that the appellant shall also be considered for promotion/ proforma promotion as Superintending Engineer (BS-19) w.e.f 11.03.2009 i,e, the date of promotion of his next junior (Respondent No, 3) and for promotion/proforma promotion as Chief Engineer (BS-20) w.e.f 04.12.2012 i,e, the date of promotion of his next junior (Respondent No, 3), with all consequential benefits. Respondent No, 2 is further directed to complete the above-directed process within a period of 90 days of receipt of this order, with intimation to Registrar of this Tribunal. Disposed of.